Situational Analysis and the Legal Framework on Sexual and Gender-Based Violence in
Kenya: Challenges and Opportunities
Dr. Ruth Aura*
1.1 Introduction
Violence against women is perhaps the most widespread and socially tolerated of human
rights violations, cutting across borders, race, class, ethnicity and religion. Sexual and
gender-based violence (SGBV)1 is a particularly disturbing phenomenon which exists in all
regions of the world. Kenya is not an exception to this form of brutality which negatively
affects women and girls in particular. The term refers to any harmful act that is perpetrated
against one person’s will and that is based on socially ascribed (gender) differences between
males and females.2 It includes acts that inflict physical, mental, or sexual harm or suffering,
threats of such acts, coercion and other deprivations of liberty, whether occurring in public or
in private life.3 In 1993, the UN Declaration on the Elimination of Violence against Women
offered the first official definition of gender-based violence:4
*LLD- University of Pretoria, LLM- University of Zimbabwe, MPS-University of Forte Hare, LLB, University
of Nairobi. The author has previously taught at the Nairobi School of Law, UON and currently lectures at the
Institute of Women Gender and Development Studies and School of Law, Egerton University.
1
Although the terms gender-based violence (GBV) and sexual and gender-based violence (SGBV) are often
used interchangeably, UNHCR consciously uses the latter to emphasise the urgency of protection interventions
that address the criminal character and disruptive consequences of sexual violence for victims/survivors and
their families.
2
‘Prevention of and Response to Gender Based Violence’ available https://www.nrc.no/arch/_img/9293565.pdf
accessed 28 March 2014.
3
Inter-Agency Standing Committee Guidelines for Gender-Based Violence Interventions in Humanitarian
Settings (2005) http://www.unhcr.org/refworld/docid/439474c74.html accessed 14 February, 2014. This
definition is also based on the UN Declaration on the Elimination of Violence against Women (1993).
4
See Article 1 of DEVAW. Article 2 of the Declaration states that the definition should encompass, but not be
limited to, acts of physical, sexual, and psychological violence in the family, community, or perpetrated or
condoned by the State, wherever it occurs. These acts include: spousal battery; sexual abuse, including of female
children; dowry-related violence; rape, including marital rape; female genital mutilation/cutting and other
traditional practices harmful to women; non-spousal violence; sexual violence related to exploitation; sexual
harassment and intimidation at work, in school and elsewhere; trafficking in women; and forced prostitution.
1
Any act of gender-based violence that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of such acts, coercion or arbitrary
deprivations of liberty, whether occurring in public or in private life.
SGBV entails widespread human rights violations, and is often linked to unequal gender
relations within communities and abuses of power.5 According to Jewkes, violence against
women is rooted in gender inequality.6 He argues that violence against women involves men
and women where ‘the female is usually the victim and which arises from the unequal power
relationships between men and women.’7 It can take the form of sexual violence or
persecution by the authorities, or can be the result of discrimination embedded in legislation
or prevailing societal norms and practices. It can be both a cause of forced displacement and
an intolerable part of the displacement experience.
SGBV in Kenya, as elsewhere in the world, is a complex issue that has as its root the
structural inequalities between men and women that result in the persistence of power
differentials between the sexes. Women’s subordinate status to men in many societies,
coupled with a general acceptance of interpersonal violence as a means of resolving conflict,
renders women disproportionately vulnerable to violence from all levels of society:
individual men, within the family and community, and by the state. In blaming men’s
violence for the impoverishment of the women, Cornwall Andrea states:
Men’s violence is a key determinant of the inequities and the inequalities of gender relations
that both disempower and impoverish women. Violence is a fundamental dimension of human
poverty. Yet, men’s natural aggression’ is often invoked as a defining characteristic of an
essential gender difference and as an explanation for gendered hierarchical arrangements in
the political and economic contexts of richer and poorer countries alike. 8
The impact of SGBV is devastating. The individual women who are victims of such violence
often experience life-long emotional distress, mental health problems and poor reproductive
health, as well as being at higher risk of acquiring HIV and intensive long-term users of
5
6
See Beijing Declaration and Platform for Action, 15 September 1995, Paragraphs 113 & 114.
R
Jewkes
Intimate
Partner
Violence:
Causes
and
Prevention,
(2002)
359,
available
at
http://ww.thelancet.com/journals/lancet/article/PIIS0140673602083575/abstract.htm, accessed on 19 February
2014.
7
Jewkes (n 6 above) 361.
8
A Cornwall, ‘Men, Masculinity and Gender in Development’ (2001) 5 2 Gender and Development 12.
2
health services. In addition, the cost to women, their children, families and communities is a
significant obstacle to reducing poverty, achieving gender equality and ensuring a peaceful
transition for post-conflict societies. This, in conjunction with the mental and physical health
implications of gender-based violence, impacts on a state or region’s ability to develop and
construct a stable, productive society, or reconstruct a country in the wake of conflict.
Effective protection can be established only by preventing SGBV, identifying risks and
responding to survivors, using a coordinated, multi-sectoral approach. The present protection
environment in Kenya is fraught with challenges and filled with opportunities, which should
be carefully considered when devising responses. Whereas the Kenyan legal framework
provides a mechanism for addressing SGBV, the levels to which the frameworks respond to
the plight of the survivors of SGBV is debatable. The legal and policy framework mostly
focuses on bringing of the accused person to ‘justice’ without a corresponding obligation of
alleviating the conditions of the survivor of SGBV. In fact, the survivor of SGBV is more of
an alien to the criminal justice system because the offence is perceived by the system to have
been committed against the state, not against the survivor of the SGBV as an individual.
The state in most cases perpetrates or tolerates violence against women either through action
or non-action by prioritizing custom or tradition over the respect of fundamental freedoms
and rights belonging to women. Kenya is especially guilty of having a system that is replete
with cases of abuse of women’s rights. However, the recent case of C.K.(A Child) Through
Ripples International As Her Guardian And Next Friend) & 11 Others v. Commissioner Of
Police/Inspector General Of The National Police Service & 3 Others9 where the High Court
made a finding that the police’s failure to effectively enforce Section 8 of the Sexual
Offences Act, 2006 infringed upon the petitioners right to equal protection and benefit of the
law contrary to Article 27(1) of the Constitution of Kenya, 2010 was a step forward in the
right direction. In addition, the court observed that by failing to enforce existing defilement
laws the police contributed to development of a culture of tolerance for pervasive sexual
violence against girl children and impunity. This decision informs the crux of this article and
is therefore the point of departure.
1.2 Forms, Prevalence, Causes and Impact of SGBV in Kenya
1.2.1 Forms and Prevalence of Sexual and Gender-Based Violence in Kenya
9
[2013] eKLR.
3
The nature and extent of specific types of SGBV vary across the different cultures in Kenya.
Examples of SGBV as has already been discussed in the introduction to this article include,
but are not limited to sexual violence; sexual exploitation and abuse; forced prostitution;
domestic violence; human trafficking; forced or early marriage; and harmful traditional
practices such as female genital mutilation, honour killings, widow inheritance, among
others. In Kenya, as in other places around the world, SGBV occurs in diverse forms across
all socio-economic and cultural backgrounds and women are socialised to accept, tolerate and
even rationalise it.10
The 2008-09 Kenya Demographic and Health Survey (KDHS) reveals that about 39 per cent
of women have experienced some form of SGBV since they were 15 years old.11 This data
further reveals that experience of SGBV in all forms – emotional, physical and sexual – rises
with age as well as with the number of living children she has.12 The survey urges that 39
percent of women have experienced physical violence and 21 percent have experienced
sexual violence.13 Marital violence contributes to the majority of SGBV.14 Violence that may
begin with threats may end in forced ‘suicide’, death from injuries or homicide.15 Moreover,
familial violence is the next biggest contributor to physical violence in Kenya as more than
two thirds of women who report abuse, report their abusers to be husbands or other
relatives.16 Women who are employed are more likely to experience SGBV than those who
are unemployed.17
10
Kenya National Bureau of Statistics ‘The Demographic and Health Survey 2008-2009’ June 2010 Kenya
National Bureau of Statistics 240.
11
(n 10 above) 241.
12
The survey indicates that the Percentage of women who have ever experienced physical violence since age 15
is as follows: 15-19 (26.9%) 20-24 (37.5%) 25-29 (42.2%) 30-39 (43.7%) 40-49 (43.5%). Analysis by marital
status reveals that women who are divorced, separated, or widowed are more likely to be exposed to violence
(60%) than their married (42%) and never-married (25%) counterparts.
13
UNFPA (2006). “Kenya: Creating a Safe Haven, and a Better Future, For Maasai Girls Escaping Violence”
Chapter 5. Programming to Address Violence Against Women: 10 Case Studies 50.
14
(n 10 above) 241.
15
Advocates
for
teen
mothers
(2003).
Breaking
the
Cycle
of
Gender
Violence.
www.globalgiving.com/pfil/1644/projdoc.pdf accessed 28 February, 2014.
16
UNAIDS (2006). Violence Against Women and Children in the Era of HIV and AIDS: A Situation and
Response Analysis in Kenya 13.
17
(n 10 above) 258-259.
4
Rape is an acknowledged widespread problem but statistics are not certain due to societal
pressures which impress the importance of chastity and honour.18 However, the statistics
from police headquarters show that 2005 women and children were raped in 2002; these
figures rose to 2908 in 2004.19 The reporting of rape is difficult as many women do not have
the education or economic capacity to negotiate the legal system. Raped women are often
traumatised and stigmatised and can be abandoned, divorced and declared unmarriageable.
The low status of women contributes to their vulnerability in the wider society and within the
home.
Traditional practices, such as widow inheritance, are widespread. A survey completed by
UNAIDS found that 16 percent of married women are in polygamous marriages and 10
percent of girls between 15 and 19 are married compared to 1.3 percent of boys. 20 Thus girls
are often married to older men leaving them vulnerable to unequal power relations. Female
Genital Mutilation (FGM) is widely practiced in many Kenyan communities. It involves
either partial or total removal of the external female genitalia or other injury to female organs
for cultural reasons.21 According to the 2008-9 KDHS there was a 7 percent decline recorded
from 2003 to 2008, and the proportion of women circumcised increases with age. Therefore
there has been a decline in the practice of female circumcision over the past two decades. A
higher proportion of rural women (36 percent) than urban women (21 percent) have been
circumcised. Moreover there is a strong relationship between education level and
circumcision - 58 percent of women with no education are reported to be circumcised and
only 21 percent of educated women.22 Religion also plays a part in the practice of FGM, with
one-half of Muslim women circumcised as compared to one-third of non-Muslim women.
This links to the practice of female genital cutting across ethnic groups within Kenya which
widely varies. It is almost universal among Somali (97 percent), Kisii (96 percent) and
18
P Kameri-Mbote (2002). Violence Against Women in Kenya: An Analysis of Law, Policy and Institutions.
http://www.ielrc.org/content/w001.pdf accessed 1 March 2014.
19
L Kangara “Sexual Violence Among Adolescents in Kenya” (MA Development Studies) Egerton University.
www.planetwire.org/get/6283 accessed 1 March 2014.
20
UNAIDS (n 16 above) 12.
21
(n 16 above) 250.
22
As above.
5
Maasai (93 percent) tribes.23 Levels are lower among Kikuyu (34 percent) and Kamba (27
percent) women.
SGBV increased during the post-election violence in 2007-08 in Kenya as there was limited
protection of women and girls from violence.24 A collapse in social order exacerbated sexual
violence as sexual violence was used as a tool to terrorize individuals. During this period,
however, documentation of such reports was not being taken seriously.25 As a result, this
escalated health concerns. The challenges of data collection related to SGBV and pin-pointed
shame and fear as the reasons why people did not report26. This was because people subjected
to SGBV hardly reported to the police and therefore there was a problem of under reporting
for those that were available. Notable from was the fact that most women who are subjected
to SGBV preferred to seek help from the family members.27
1.2.2 Causes and Impact of SGBV in Kenya
The causes of gender-based violence are many, complex and varied depending on the types
of violence. Traditional attitudes towards women around the world help perpetuate the
violence. Stereotypical roles in which women are seen as subordinate to men constrain a
woman’s ability to exercise choices that would enable her end the abuse. A study undertaken
by Odhiambo reveals that the causes of SGBV varied and range from political, economic,
legal, social and religious dimensions.28 Indeed Rhonda Capelon asserts that SGBV against
women is systematic and structural, a mechanism of patriarchal control of women that is built
23
(n 16 above) 251.
24
A Rapid Assessment of Gender–Based violence during post- election violence undertaken by UNFPA in
2008- The report gives details of SGBV experienced during the post–election violence such as sexual violence,
sexual exploitation among others.
25
Kenya Demographic Health Survey (KDHS) - (2008-09) recognizes the fact that SGBV had not been taken
seriously in terms of documentation as a health concern.
26
(n 10 above) 270.
27
Women who reported the violence to the family accounted for 63% while report to the police was 5%. Report
to the medical doctors stood at a paltry 2%.
28
Odhiambo R.A.A (2000), Intimate terror: A case study of the law versus lived realities of battered wives
among the Luo Community living in Nakuru, Kenya. PGD Thesis: University of Zimbabwe 16.
6
on male superiority sex stereotype and expectations, and economic, social and political
dominance of men and dependency of women.29
Similarly, SGBV is as a result of many socio-economic variables such as the social position,
employment, status, financial circumstances and self concept and personal as well as
community values as contributing factors to the violence. From the above statements SGBV
is therefore occasioned by and persists due to a number of factors and no single or major
cause can be attributed to the prevalence of SGBV against women which transcends class or
ethnic or race divisions.30 According to UNICEF, causes of SGBV can be categorised into
four broad categories as being: socio-cultural causes; economic causes; legal causes; and
political causes.31
Socio-cultural causes, include gender-specific socialization; cultural definitions of
appropriate sex roles; expectations of roles within relationships; belief in the inherent
superiority of males; values that give men proprietary rights over women and girls; notion of
the family as the private sphere and under male control; customs of marriage (bride
price/dowry); and acceptability of violence as a means to resolve conflict.32 Economic causes
include women’s economic dependence on men; limited access to cash and credit;
discriminatory laws regarding inheritance, property rights, use of communal lands, and
maintenance after divorce or widowhood; limited access to employment in formal and
informal sectors; and limited access to education and training for women.33
Legal causes include lesser legal status of women either by written law and/or by practice;
laws regarding divorce, child custody, maintenance and inheritance; legal definitions of rape
29
R Capelon ‘Intimate terror: Understanding Domestic Violence as Torture’ in RJ. Cook (ed) Human Rights of
Women: National and International Perspectives (1994) 20.
30
Female Genital Mutilation for instance has been construed as rite of passage, ensuring marriageability, family
honour, controlling sexuality, religious requirement as well as a cultural and ethnic identity. See Government of
Kenya (2010), The 7th Periodic Report of the Government of the Republic of Kenya on Implementation of the
International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),
available
at
http://www.gender.go.ke/index.php/Download-document/20-CEDAW-7th-Country-Report-
Kenya.html, accessed last on 19 February 2014.
31
United Nations Children’s Fund (UNICEF) (2000), Domestic Violence Against Women and Girls, Innocenti
Research Center: Florence, Italy.
32
UNICEF (n 31 above).
33
As above.
7
and domestic abuse; low levels of legal literacy among women; as well as insensitive
treatment of women and girls by police and judiciary. 34 Political causes include
underrepresentation of women in power, politics, the media and in the legal and medical
professions; SGBV not taken seriously; notions of family being private and beyond control of
the state; risk of challenge to status quo/religious laws; limited organization of women as a
political force; and limited participation of women in organized political system.35
For a long time, men have assumed superiority over women in all aspects of life. This
superiority has known no limits and women have been at the behest of all manner of violence
executed by men. The question that must therefore be asked is: what makes men believe that
they have a right to exercise violence against women? In an attempt to answer this question,
Kivutha Kibwana argues that from the cradle to the grave, men are exposed to several myths
and excuses which are used to justify and rationalize violence against women.36 Kibwana
further contends that a man who identifies with these myths which constitute the motive force
of ill-treatment of the opposite sex and embarks on demystifying and negating them, stands a
chance of developing a proper attitude and relationship towards women, an attitude and
relationship which cannot permit perpetration of violence.37
34
As above.
35
As above.
36
Some of these myths and excuses include: ‘As a man, I am a superior being to a woman.’ ‘My superiority
stems from my physical strength which I perceive to surpass that of the woman and also from cultural, religious,
and historical justification of male hegemony over women.’ ‘My women must be placed under my tutelage and
authority if they are to realize themselves.’ ‘A woman commits many mistakes purposely or inadvertently for
which she must be punished so that, just like a child, she can be promptly corrected.’ ‘Punishing women
frequently establishes the proper hierarchy of the sexes and the social structure power.’ ‘Most women appreciate
that they are punished to improve them, for their own good.’ ‘Sometimes when I have been abused out there, I
am entitled to commit violence against my spouse or other women who do not understand my state and do not
appropriately comfort me as an act of self-affirmation.’ ‘My women are my property, and as with all property,
the owner has the power of use and abuse.’ ‘When the threat of violence hangs over a woman like the Sword of
Damocles, the woman’s good behavior is perpetually guaranteed.’ ‘Violence against women is not really
violence as occurs in other spheres of societal encounters and confrontations.’ ‘Punishing a woman is a duty and
an act of solidarity by all men to ensure that women are put in their subordinate place.’ ‘I punish my women
because I love them.’ See K Kibwana Law and the Status of Women in Kenya (1996) 160.
37
Kibwana (n 36 above) 162.
8
The effects of Gender-based violence can be devastating and long lasting. They pose danger
to a woman’s reproductive health and can scar a survivor psychologically, cognitively and
interpersonally. A woman who experiences domestic violence and lives in an abusive
relationship with her partner may be forced to become pregnant or have an abortion against
her will, or her partner may knowingly expose her to a sexually transmitted infection such as
HIV/AIDS.
1.3 Legal Framework Addressing SGBV in Kenya
SGBV does not only occur during war; it is rampant even where legal systems and
institutions are working. Communities uphold, practice and normalize various forms of abuse
against women that include SGBV, female genital mutilation, early or forced marriage as
well as virginity testing. The value attached to female chastity is so high that even where a
woman is a survivor of sexual abuse, the typical community response is to isolate and
stigmatize her. The shame and stigma attached to gender-based violence against women, and
the lenient penalties meted out on offenders in formal and traditional judicial systems, silence
victims.
Many governments have committed themselves to prevent and end gender-based violence by
ratifying international conventions and declarations, thus acknowledging the seriousness of
the problem. Despite these efforts, violence against women is still rampant, hence the need to
continuously conduct research in order to expose the hidden problem and suggest strategies
that SGBV against women and children, but also prescribe how the victims can be
compensated and supported. States have an obligation to promote and protect all human
rights and fundamental freedoms of all citizens, and they must exercise due diligence to
prevent, investigate and punish acts of violence against women and children. The state also
has a duty to protect victims of any form of violence, a responsibility for which it ought to be
held to account.
1.3.1 International Instruments
The substance and nature of SGBV can be so severe that it is a clear and unquestionable
violation of the basic human rights of the victim.38 SGBV in its innumerable forms is a
38
In 1983 Piah Njoki’s eyes were gorged out by her husband for bearing him only female children. In 1998,
there was also the Betty Kavata case in which the husband beat her senseless causing her to later succumb to
9
manifestation of discrimination against women and a violation of their substantive rights,
including the right to life, the right to liberty and security of the person, the right to be free
from torture and the right to health.39 Meyersfeld paints a grimmer picture when she posits
that:40
This is the fact. Every day, throughout the world, women are subjected to
extreme acts of physical violence, which take place within the beguiling safety
of domesticity. The violence is severe, painful, humiliating, and debilitating.
And it is common. It is a phenomenon that stretches across borders,
nationalities, cultures, and race. A binding characteristic of communities
throughout the world, almost without exception, is the battering of women by
men.
SGBV has been acknowledged as being an express violation of human rights particularly the
rights of women. In this regard Romany posits that:41
To assert that a particular social claim is a human right is to vest it emotionally and
morally with an especially high order of legitimacy. Violence is an egregious form of
certain infringement of the core and basic notions of civility and citizenship. Violence
assaults life, dignity, and personal integrity. It transgresses norms of peaceful coexistence.
International law is an instrument employed by states to resolve global issues. These global
issues are not only those affecting the state parties in their ‘national’ capacity, but also
serious head injuries while in hospital. See TG Ondicho ‘Battered Women: A Socio-Legal Perspective of Their
Experiences in Nairobi’ (2000) 21 1 African Study Monographs 35-44.
39
BSN Khutsoane ‘Gender-based Violence and the Convention on the Elimination of All Forms of
Discrimination Against Women’ in Center for Human Rights (ed) (Undated) Gender-based Violence in Africa
Pretoria: Centre for Human Rights' Gender Unit 3.
40
B Meyersfeld ‘Reconceptualizing Domestic Violence in International Law’ (2004) 67 Albany Law Review
371.
41
C Romany ‘State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in
International Human Rights Law’ in R Cook (ed) Human Rights of Women: National and International
Perspectives (1994) 85. See also RB Bilder ‘Rethinking International Human Rights: Some Basic Question’
(1969) 1969 1Wisconsin Law Review 174.
10
individual issues bordering on express or implicit violation of human rights. 42 The surfeit of
international legal instruments and statements dealing with violence against women suggest
that international bodies and states have identified violence as a global rights concern. Until
very recently, violence against women generally was not thought of as a proper subject for
international human rights law.43 The main achievement of the international instruments
therefore, is to recognize SGBV as a human rights violation.
Therefore internationally and regionally there exist a series of instruments meant to protect
women and girls against SGBV.44 This in turn has aptly helped recognize SGBV as a human
right violation. Of great importance is the principle of due diligence as enounced under
international law principles.
The due diligence principle provides a standard of care used to determine whether a state has
complied with its international obligations.45 In several international conventions and
accords, there has now been explicit acknowledgment of the state’s responsibility for human
42
B Meyersfeld Domestic Violence and International Law (2010) 32.
43
L Hasselbacher ‘State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due
Diligence, And International Legal Minimums of Protection’ (2010) 8 2 Northwestern Journal of International
Human Rights 192. See also AK Wing ‘A Critical Race Feminist Conceptualization of Violence: South African
and Palestinian Women’ (1997) 60 Albany Law Review 944.
44
See for instance Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III)
(UDHR),Vienna Declaration and Programme of Action: World Conference on Human Rights (adopted 12 July
1993 UN Doc. Conf. 157/23); Declaration on Elimination of Violence Against Women (adopted 20 December
1993 UNGA Res 48 /104) (DEVAW); UN Resolution on Elimination of Domestic Violence Against Women
(adopted 19 February 2004 UNGA Res 58/147); Beijing Declaration and Platform for Action (adopted 17
October 1995, UN Doc A/Conf. 177/20) (BPFA); the Convention on Elimination of All Forms of
Discrimination Against Women (adopted 18 December 1979 UNGA Res 34/180) CEDAW) and regionally,
African Charter on Human and People’s Rights (adopted 27 June 1981 UN Doc CAB/LEG/67/3) (ACHPR) and
Protocol to the African Charter on Human and peoples’ Rights on the Rights of Women in Africa (adopted 11
July 2003) (Maputo Protocol) among other recognizes that violence against women is an impediment to
women’s right to peace and development. The instruments roots for elimination of all forms of violence against
women and obligates state to take legislative, policy or other appropriate measure to end violence against
women in line with their international obligations.
45
Black’s Law dictionary defines due diligence as diligence reasonably expected from, and ordinarily exercised
by, a person who seeks to satisfy a legal requirement or to discharge an obligation. BA Garner Black’s Law
Dictionary (9th ed) (2009) 488.
11
rights violations by private actors in both the public and private spheres. A state has both
negative and positive obligations towards her citizens. One of the duties is to refrain from
acts of violence against women as well as to prevent and protect women from violence.
Similarly, a state has a duty to punish perpetrators and compensate victims of violence. The
state may be held responsible under international law for failure to provide reasonable and
adequate measures to prevent or address women’s rights violations. DEVAW for instance,
DEVAW includes explicit directions to countries to ‘not invoke any custom, tradition or
religious consideration to avoid their obligations with respect to its elimination.’46
CEDAW establishes international standards for guaranteeing equality between women and
men within the family as well as between the family and the state.47 The essence of this
convention, as of the UDHR, is respect for human dignity and respect for the human capacity
to make responsible choices. The 1993 World Conference on Human Rights in Vienna
brought together women’s non-governmental activists with UN and human rights leaders.48
Together they agreed to further insist that state and local biases in the implementation of
CEDAW, due to so-called religious and cultural interpretations or reservations, be
eliminated.49
DEVAW, as already stated, and BPFA later helped to further crystallize the doctrine that
women’s rights are human rights. In particular, these accords reinforce CEDAW principles
which establish that states be held responsible for failing to demonstrate ‘due diligence’ in
averting or punishing violence against women that occurs either in the public or the private
sphere. As a result, these Conventions and Agreements have created space in which practices
that were once considered as private issues like domestic violence, which is a form of SGBV,
can now be understood as human rights violations of public concern. The growing use and
widespread application of human rights discourse itself has begun to dissolve the publicprivate divide, and has further provided a moral momentum for direct response by national
governments and non-governmental sectors.
46
Article 4 of DEVAW.
47
B Meyersfeld Domestic Violence and International Law (2010) 32..
48
B Burton et al Justice, Change, and Human Rights: International Research and Responses to Domestic
Violence (2002) 22.
49
Burton (n 48 above) 24.
12
1.3.2 The Kenyan Constitutional Framework on the Protection of Women against
SGBV
On 4th August 2010, Kenyans ratified the proposed Constitution at a national referendum
held on that day. This ratification was followed by the promulgation on 27th of the same
month. At last, Kenya began its transition to good governance, characterized by democracy,
public participation, accountability, equity, equality and adherence to the rule of law. For
many decades Kenya had been grappling with a moribund of challenges with regards to
issues of democracy, rule law, equity and equality. The constitution review journey, including
the setting up of the review bodies such as the Constitution of Kenya Review Commission
and the Committee of Experts, entailed a struggle to ensure gender equality and equity.50
The Bill of Rights in the Constitution of Kenya 2010 under Chapter 4 thus gives guarantees
for a wide range of rights and fundamental freedoms. The Constitution provides the greatest
opportunity to the people of Kenya to advocate for their rights founded on the provisions of
the Constitution and also welcome in a new era of institutional overhaul. The Constitution
further recognizes a number of important general principles that are of importance to gender
equality and that have a general bearing on gender-based violence in the Country. These
principles were either not given recognition by the previous Constitution or were given
inadequate treatment.
Article 10 (2) (b) sets out the national values and principles of governance to include, among
others, human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination and protection of the marginalized. Article 19 (2) states the purpose of
recognising and protecting human rights and fundamental freedoms as being to preserve the
dignity of individuals and communities and to promote social justice and the realisation of the
potential of all human beings. This general proposition is important and relevant to women’s
50
The review and harmonization processes were crafted to ensure representation of women. Gender activists
had for a long time questioned many of the constitutional provisions that did not guarantee women equal rights
with men. For example, until 1997, section 82 of the Kenyan constitution dealing with the question of
discrimination excluded "sex" as an objectionable ground for discrimination. However, the revision of the
Constitution in 1997 included “sex” as an objectionable ground for discrimination in section 82(3) but did not
include it in section 82(4) which made the prohibition of discrimination inoperative in matters of adoption,
marriage, divorce, burial, devolution of property on death or other matters of personal law and customary law.
This left women open to discrimination in the very areas where they were most vulnerable.
13
struggle for gender equality and gender equity. Further, the Constitution imposes a positive
duty on the State and all State organs to observe, respect, protect, promote and fulfil the
rights and fundamental freedoms in the Bill of Rights.51
Also significant is Article 2 (5) and (6), which provides that the general rules of international
law as well as any, treaty or convention ratified by Kenya form part of the law of Kenya.
These two provisions may be interpreted to mean that international law becomes directly
applicable by Kenyan courts, regardless of whether parliament has enacted specific
implementing legislation to incorporate the international laws in question. Notable is Article
21 (4) which imposes on the State the obligation to enact and implement legislation to fulfil
its international obligations in respect of human rights and fundamental freedoms.
Besides the fundamental change that has come about with the demise of Section 82(4), the
2010 Constitution contains a very detailed clause on equality and freedom from
discrimination.52 From a gender equality perspective, this clause is commendable on four
limbs. First, it states explicitly that men and women have the right to equal treatment and
equal opportunities in the ‘political, economic, cultural and social sphere’.53 Second, the
grounds on which the state is not to discriminate are much broader than existed under the old
constitution, and they include pregnancy, marital status, health status, disability and dress.54
Third, it is not only the state that may not discriminate- the prohibition of discrimination
applies horizontally among all persons55 Lastly, for the first time there is constitutional
provision for the principle of affirmative action, in order to ‘give full effect to the realization
of the rights guaranteed under this Article’56. The Constitution therefore recognizes that in
order to give full effect to the right to full equality before the law, it may be necessary to take
measures to redress past patterns of discrimination, such as those that relate to gender
relations.
51
See Article 21 (1) of Constitution
52
See Article 27 of the Constitution.
53
See Article 27(3) of the Constitution
54
See Article 27(4) of the Constitution.
55
See Article 27(5) of the Constitution.
56
See Article 27(6) of Constitution.
14
The Constitution further provides for the security of the person and protection against all
forms of violence.57 The relevant Article provides that every person has right to freedom and
security of their person which includes the right not to be subject to any form of violence
from either public or private sources, any form of torture whether physical or psychological
or cruel, inhuman or degrading treatment. The right to security means that the Constitutions
safeguards women’s right against SGBV and any other related form of gender-based
violence. However, SGBV is premised on power imbalance which is supported and
sanctioned by culture. The Constitution does not provide for how the embedded culture can
be dealt with to free women from violence, neither has it provided for mechanisms for
educating people to shun culture that perpetuate violence.
1.3.3 The Legislative Framework
Kenya, like many African societies is a patriarchal society. Although there are still many
gender related challenges facing the country, a few strides in form of policy developments
and enactment of key legislation have been undertaken in the recent past geared at gender
equality and protection. These include among others, the Sexual Offences Act58; the
Children’s Act;59 in addition to key gender Bills awaiting enactment by parliament, in
particular the Domestic Violence Bill. Other than changes to the Constitution, which is
Kenya’s supreme law, the government has also undertaken several amendments of laws that
relate to women’s rights.
Although most issues that affect women and girls are addressed in the legal framework
discussed below, only a few legislations have been enacted. This is attributed to delays in
debate, long legislation processes and limited commitment to ensure that legislation that give
women equal opportunities in society are given parliamentary priority. Although the
government has articulated a strong commitment to achieving gender equity, this is yet to be
demonstrated through effective enactment and implementation.
57
See Article 29 of the Constitution.
58
Act 3 of 2006.
59
Act No. 8 of 2001
15
i. Sexual Offences Act 60
The Sexual Offences Act was enacted in response to curb the escalating sexual violence.
Primary purpose was to ensure complainants of sexual offences get justice commensurate to
the harm caused to them. It makes provisions for the sexual offences, their definition,
prevention and protection of all persons from harm arising from unlawful sexual acts. It
provides for minimum sentence as opposed to the Penal Code which gave magistrates too
much discretion on sentencing a signal of government’s commitment to eradicate sexual
violence. It prohibits all manner of sexual offences from defilement to attempted defilement,
rape to attempted rape, sexual harassment and sexual exploitation. This is the first legislation
in Kenya’s legal history, to recognize sexual harassment as a crime. It has also prohibited
child trafficking, prostitution and sex tourism. It recognizes also sexual offences of mentally
impaired. It has not however criminalized marital rape in Kenya.
The enactment of the Sexual Offences Act has not been matched with adequate training and
dissemination of the Act to law-enforcement officers and relevant justice system agents. Most
of the awareness created on the Act has been conducted by Civil Society Organizations yet it
is the government’s role to ensure that its citizens are made aware of any new laws. This
means that most people are still not aware of the existence of the Act. Furthermore poor
investigation of cases results in the lack of conviction of offenders thus denying justice to
survivors of violence. The Act did not criminalize FGM for women above the age of 18 years
thus rendering them vulnerable to negative cultural practices but this has been hitherto cured
by Anti FGM Act 2011.
ii. The Penal Code61
The Penal Code prohibits all acts of violence in its provisions. It however does not
sufficiently address SGBV which is prevalent within the Kenyan society. SGBV, for
instance, is only inferred by virtue of interpreting the vice as an assault as provided for under
60
No. 3 of 2006
61
The Penal Code Cap 63 Laws of Kenya
16
section 25062 and 25163. There is no specific offence such as wife battery/ husband battery.
The inadequacies for addressing SGBV present challenges to the fight against the vices.
iii. Children’s Act64
The Children’s Act makes provisions for the safeguards of the rights and welfare for the
children. The Act stipulates that all activities done on behalf of children should be in the best
interest of the child. Violence meted against children therefore does not constitute best
interest of the child. Section 13 guarantees children (both girls and boys) the right to
protection from physical and psychological abuse, neglect and any other form of exploitation
including sale, trafficking or abduction. Under section 14 children are protected from female
circumcision, early marriage or other cultural rites, customs, or traditional practices which are
harmful to the child’s development. The Act also explicitly prohibits sexual exploitation of
children as well as actions that expose children to torture or cruel or inhuman treatment such
as circumcision or child marriages.
1.3.4 Policy Framework
National Guidelines on the Management of Sexual Violence65
This guiding policy framework is critical as it spells out the essential procedures and services
for management of survivors of sexual violence and explicitly recognizes sexual violence as a
serious human rights and health issue which calls for imperative attention by all concerned.
The guideline is a response to the devastating effects of sexual violence to the survivors and
hence the need to be treated with dignity and respect to minimise the harm already
occasioned.
62
Any person who unlawfully assaults another is guilty of a misdemeanour and, if the assault is not committed
in circumstances for which a greater punishment is provided for in this code, is liable for imprisonment for one
year.
63
Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable
for imprisonment for five years.
64
65
No. 8 of 2001
Ministry of Public Health & Sanitation Ministry of Medical Services ‘National Guidelines on the
Management of Sexual Violence’ (2009) (2nd ed).
17
The guidelines provide elemental information on management of sexual violence in a multipronged manner. It gives medical practitioners information on steps to be taken when treating
a survivor of sexual violence,66 preservation of evidence for court use,67 issues of psychosocial support and other ethical issues related to the management of health-related problems
of sexual violence.68 This is a completely new development. Unlike the previous invasive and
unfriendly process in the old P-3 form system the guideline has improved in the
documentation of evidence for sexual offences and ensured that it is done in a more friendly
and comprehensive manner.69 In a nutshell, the guideline advocates for a holistic approach to
addressing the problem through a comprehensive care provision system that brings all the
relevant stakeholders under one roof.
National Framework toward Response and Prevention of Gender Based Violence in Kenya70
The framework is a specific strategy to coordinate the various state and non state actors’
responses to domestic violence in Kenya. It was borne of the realization that there are various
actors in the fight SGBV, but their responses are uncoordinated. The framework therefore
provides guidance for coordination mechanisms among the various actors, including the
government, non-governmental organisations, the police and the civil society among others,
aimed at eliminating duplication as well as strengthening and enhancing the effectiveness of
intervention in a cohesive and comprehensive manner.
The framework creates an environment for understanding violence by highlighting the
various forms of sexual and gender based violence in Kenya in detail. It has analyzed the
existing legislative and policy responses, community interventions as well as their efficacy
and weakness and given directions for future actions to end domestic violence in Kenya. The
framework is emphatic of the need for an aggressive and multi-dimensional approach to
addressing domestic violence in Kenya in line with international legal instruments. The
framework has been aligned to the international instruments such as CEDAW, BPFA, and the
Nairobi Forward-Looking Strategy. The framework takes cognizance of the feminist
argument that SGBV is complex and varied and therefore requires a multi-faceted approach.
66
Ministry of Public Health & Sanitation Ministry of Medical Services (n 65 above) 8.
67
As above.
68
Ministry of Public Health & Sanitation Ministry of Medical Services (n 65 above) 18-24.
69
Ministry of Public Health & Sanitation Ministry of Medical Services (n 65 above) 24.
70
National Framework toward Response and Prevention of Gender Based Violence in Kenya 2nd Edition 2009.
18
The framework also makes provision for the enhancement of capacity of the Kenyan police to
respond adequately to cases of sexual and gender-based violence. This is a tacit
acknowledgment of the police’s failure to provide effective protection to victims of SGBV as
is evidence in the 160 girls case already alluded to.
1.4 Legislations and Policy Implementation Challenges
Despite the existence of policies, legislative reforms, plans and programmes, gender
disparities still exist in legal, social, economic and political levels of participation in decision
making, as well as access to and control of resources, opportunities and benefits. Overall, the
implementation of policies and laws has been slow; a situation attributed to gaps in the laws,
delayed enactment of gender related legislation and lack of comprehensiveness in content of
the same laws, for example, the Sexual Offences Act and the Children Act. These gaps have
already been referred to in the various laws discussed above. However, there still exist other
challenges which include:
(a) Weak Coordination, harmonization and networking among actors at all levels
In order to effectively deal with the myriad of issues related to SGBV, it is important that all
the relevant players participate fully in the process.71 This means that both government and
private entities consistently engage each other in an attempt at eradicating the vice. This has
not been the case, however, as there have been disjointed efforts at dealing with issues
relating to SGBV. The government has failed to effectively engage the civil society and other
private actors in dealing with SGBV, more so at the grassroots level.
(b) Inadequate resources
Lack of and/or inadequate resources, both human and financial have led to watered down
efforts in terms of dealing with SGBV. Resources, especially manpower and fiscal, are
needed to deal with cases of SGBV are more prevalent. This is because there is need to
disseminate information through organisation of workshops, training programmes and
71
Importance of strong coordination, harmonization and networking among all actors has been recognized by
the Kenya government. It is pivotal in mainstreaming women’s rights to protect them from SGBV.
19
sponsoring gender-related courses in schools in order to create awareness on the highlights
and consequences of SGBV to the entire community. This cannot be done where the
resources are either limited or are not there completely.
(c) Limited technical capacity and capacity consistency due to deployment transfers
Technical capacity means the ability of the relevant players to adequately meet policy
requirements, including technical knowledge and personnel capability. The process of
creating awareness about the scourge of SGBV requires highly trained and skilled personnel.
Sometimes it is not easy to get persons who can easily be part of policy and programme
implementation programmes. The effect of this is to have policies and programmes which are
frustrated ab initio. Even in situations where the required personnel are obtained, the constant
deployment and re-deployment of officers means that the implementation process can be
frustrated at times.
(d) Lack of Monitoring and Evaluation (M&E) framework
There lacks a proper mechanism in place to follow up on the implementation processes. The
projects and programmes on the ground need to be constantly monitored and evaluated in
order to ensure that policy implementation agencies do not veer off the right course. The
consequence of absence of or ineffective monitoring and evaluation frameworks is that the
projects and/or programmes risk not achieving the intended goal or waning along the way.
(e) Socio-cultural issues
Socio-cultural biases which favour men over women and the girl child have consistently
continued to frustrate the implementation of the legal framework. Traditionally, women have
been viewed as lesser beings than men. This means that the man can do whatever he wishes
to the woman given that he ‘bought’ the woman through payment of pride price. 72 Violence
has thus been condoned and accepted as a socio-cultural norm within the society. This has
greatly frustrated the implementation of legislation and policies.
(f) Misinterpretation of the concept of gender as women rather than women, men,
boys and girls
72
Federation of Women Lawyers (Fida) Kenya ‘Gender-Based Domestic Violence in Kenya’ (undated) 30.
20
The understanding of most laypersons of the concept of ‘gender’ is that gender is
synonymous with ‘women.’73 This means that most people would easily dismiss gender
workshops or training programmes as dealing with women-related issues only as opposed to
issues touching on ‘men and women’ as well as boys and girls. This is highly detrimental to
the implementation process. In order to effectively implement gender policies, gender must
be understood for what it is, that is, a concept referring to social and cultural constructs which
society assigns to behaviours, characteristics and values attributed to men and women,
reinforced by symbols, laws and regulations, institutions, and perceptions.74
(g) Judicial Decisions
Despite legislation and programmes addressing SGBV, there are still some inconsistencies in
terms of judicial actions. Women also are not aware of their rights, and that enforcing such
rights is thus a huge challenge.75 Attempts to come up with gender sensitive legislation have
received inadequate support due to traditional cultures and practises as well as a maledominated parliament which is gender insensitive and un-responsive.76
Marital rape remains a source of controversy within sexual violence legislation and court’s
interpretation of the same. Grounded in traditional notions of women as property, customary
laws in many countries have long defined sex within marriage as necessarily consensual,77
73
The Bureau for Crisis Prevention and Recovery ‘Gender Approaches in Conflict and Post-Conflict Situations’
United Nations Development Programme (2002) 9.
74
‘Gender Analysis’ http://www.apcwomen.org/gemkit/en/understanding_gem/genderanalysis.htm (accessed 25
February 2014).
75
The 7th CEDAW Periodic Report (n 5 above) Para 78. See also Federation of Women Lawyers (FIDA)
Kenya
76
The current parliament is divided into two houses – the National Assembly and the Senate. The National
Assembly has a total of 349 members out of which only 61 are women. The Senate has a total of 68 members
out of which 18 are women. This brings the total to only 79 women in parliament as compared to men who
make up 338 of the representation. See http://www.parliament.go.ke/plone/national-assembly/members-of-thenational-assembly/members
(accessed
27
February
http://www.parliament.go.ke/plone/senate/senators-of-the-senate/senators
2014).
(accessed
See
27
February
also
2014).
Similarly, Kenya’s 10th Parliament had a total of 222 members out of which only 21 are women. See
http://www.parliament.go.ke/plone/archive/archive-10th-Parliament (accessed 27 February 2014).
77
Helene Combrink,(2010) “Rape law reform in Africa: More of the same of new opportunities,” In Rethinking
Rape Law: International Perspectives, pp 123.
21
leading to the ‘conceptual impossibility’ of a man raping his wife. This conception underlies
the ‘marital rape exception’ that still exists in many jurisdictions.78 Indeed, the ‘defense of
marriage’ remains a legal defense in at least 53 countries, including Kenya. 79 However, many
local courts continue to grapple with the task of defining the act of rape, determining whether
marital rape can and/or should be criminalized, and clarifying where consent ends and force
begins. National sentencing practices SGBV cases vary greatly, and thus have been subject to
criticism on several grounds. Despite these challenges, the jurisprudence of sexual violence
continues to evolve to better acknowledge and redress the horrific experiences of victims.
In comparison, the South African SGBV jurisprudence, with the help of the courts, has
become much more developed than that of Kenya. This became especially more pronounced
with the coming into effect of a new constitutional dispensation in South Africa which sought
to promote the rights of women in all relational spheres. For instance, South Africa has
legislation enacted the Domestic Violence Act80 to deal with domestic violence. The Court in
the case of Omar v The Government of the Republic of South Africa and Others81 noted that
the Act serves an important social and legal purpose in addressing the scourge of domestic
violence and South Africa’s obligations under the Constitution and international law to
combat domestic violence. The Bill of Rights under the South African Constitution has been
emphasized repeatedly in judgments recently handed down by the Constitutional Court.82 In
Fraser v Children’s Court, Pretoria North and Others,83 the Constitutional Court confirmed
this:
78
See Helene Combrink,(2010), Ibid
79
See Helene Combrink,(2010), Ibid
80
Act No.116 of 1998, came into force in on 15 th December 1999 as per Government Gazette 20469 No. R 97
dated 13th September 1999.
81
CCT 47/04
82
The recent decision in President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC), is indicative
of recognition by the court that the goal of equality will not necessarily be achieved by the identical treatment of
different social groups in all circumstances. The Court held that: “The impact of the discriminatory action upon
the particular people concerned [must be considered in order] to determine whether its overall impact is one
which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not
necessarily be unfair in a different context.”
83
1997 2 BCLR 153 (CC).
22
There can be no doubt that the guarantee of equality lies at the very heart of the Constitution.
It permeates and defines the very ethos upon which the Constitution is premised. 84
With respect to domestic violence, the case of The State vs Godfrey Baloyi & 2 others85 is
instructive. Sachs, J., while delivering the verdict of the Constitutional Court of South Africa
was of the opinion that the Constitution directly compels the state to protect the right of
everyone. Subsequently in, Carmichele v. Minister of Safety and Security,86 the court pointed
out that the South Africa government also has a duty under international law to prohibit all
gender-based discrimination that has the effect or purpose of impairing the enjoyment by
women of fundamental rights and freedoms and to take reasonable and appropriate measures
to prevent the violation of those rights.87
Similarly, the Supreme Court of Appeal in the matter of Van Eeden v. Minister of Safety and
Security88 held that the appellant was owed a duty by the respondent, the state, to take
reasonable measures to stop an escaped serial rapist from harming her. The Supreme Court of
Appeal upheld an appeal by a young woman (appellant) who sought damages from the
state.89 Her action was based on the state’s breach of its duty of care towards her, following
her sexual assault, rape and robbery by a known dangerous criminal who had escaped from
police custody.
84
Para 20 of the Judgment.
85
Case CCT 29 of 1999
86
2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC).
87
The Court referred to the Convention on the Elimination of all forms of Discrimination Against Women
(CEDAW), adopted by the United Nations in General Assembly Resolution 34/180 on 18 December 1979, and
signed on 29 January 1993 and ratified by South Africa on 15 December 1995, as well as to recommendations
of the Committee on the Elimination of Discrimination Against Women. Articles 2, 3, 6, 11, 12 and 16 of
CEDAW directly or indirectly relate to violence against women. The principles of CEDAW are also evident in
the Preamble of the Universal Declaration of Human Rights adopted on 10 December 1948 and Article 4(d) of
the Declaration on the Elimination of Violence Against Women of 1994.
88
2003 1 SA 389 (SCA).
89
The appellant was a 19 year old woman who was sexually assaulted, raped and robbed by one M, a known
dangerous criminal and serial rapist who had escaped from police custody due to a negligent failure by the
police to lock the security gate. At the time of his escape, M was facing more than 22 charges which included
indecent assault, rape and armed robbery. Within six days of his escape he resumed his sexual attacks on young
women, one of whom was the appellant.
23
The court held that it was the duty of the state to protect people against violent crime and that
the police had a duty of care towards the victim. The court further held that the state was
obliged to protect individuals by taking active steps to prevent violations of the constitutional
right to freedom and security of the person. The court also held that the state was obliged by
international law to protect women against violent crime and that in the light of these
imperatives a special relationship between the plaintiff and the defendant was not required for
the duty of care to exist. The Court declared that the conduct of the police was wrongful and
the State (as employer of the police) was liable to the plaintiff for such damages as she was
able to prove. This shows that South Africa is far ahead compared to Kenya in terms of how
the give effect to international human rights law by upholding the principle of due diligence
The Kenyan courts have recently adopted this approach in protecting the rights of women as
was observed in C.K. (A Child) & 11 others vs. The Commissioner of Police & 2
others90where the petitioners had sought the assistance of the court to declare that the effect
of the respondents, that is the police, failure to conduct prompt, effective, proper and
professional investigations into the petitioners' complaints of defilement violated the
petitioners' fundamental rights and freedoms. The court in agreeing with the petitioners held
that:
Having considered the evidence in the petitioners' affidavit and the petition herein, the relevant articles
in the Constitution of Kenya, 2010, the general rules of international law, treaty or convention ratified
by Kenya and other related and relevant laws applicable in Kenya, I am satisfied that the petitioners
have proved their petition and that the failure on part of the respondents to conduct prompt, effective,
proper and professional investigations into the petitioners complaints of defilement and other forms of
sexual violence infringes on the petitioners fundamental rights and freedoms, under Articles 21(1),
21(3), 27, 28, 29, 48, 50(1) and 53(1) (d) of the Constitution of Kenya, 2010.
While this case provided a positive starting point in terms of protecting the rights of both
women and children against sexual and gender-based violence, a lot still needs to be done to
be up to standard as what is happening in South Africa.
(h) Legal Illiteracy
In recent years, the focus of literacy has changed from an emphasis on levels of schooling to
a focus on functional skills. Most lay people are not alive to the realities of the legal
90
High Court Petition of 2012.
24
environment. Knowledge of the law is power and helps in self realization. Laird Hunter
suggests that people who use the legal system must be able to guide themselves through a
process that they understand and, at appropriate places along the way, they are able to
recognize that they have a legal right or responsibility, so as to enable them to exercise or
assume it.91 Legal literacy also involves the ability to recognize when a problem or conflict is
a legal one and when a legal solution is available; know how to take the necessary action to
avoid problems, and where this is not possible, how to help themselves appropriately; know
how and where to find information on the law, and be able to find information that is
accessible to them, know when and how to obtain suitable legal assistance; have confidence
that the legal system will provide a remedy, and understand the process clearly enough to
perceive that justice has been done.92
Where people are not alive to their rights, this becomes a good breeding ground for all forms
of injustices. Women become the biggest victims as they are more vulnerable to abuse by
men. It is through awareness of the laws and the objectives served by them that citizens,
particularly marginalized or underprivileged groups, can obtain the benefits that law seeks to
offer them. Taking into consideration the present scenario, issues like empowerment of
women and making them aware of their rights, which they can use to fight injustices, become
a distant dream in the absence of legal literacy.93 Lack of awareness and education are the
main causes for injustices being meted out to the marginalized populations, especially
women.94
In 1995 the Fourth United Nations World Conference on Women was held in Beijing with
the object of achieving equality for women in various walks of life. The conference adopted
the BPFA which emphasized the need for access to free or low-cost legal services, including
legal literacy, especially focusing on women living in poverty.95 It also noted that women’s
poverty was connected to the absence of economic opportunities and autonomy, lack of
access to economic resources, including credit, land ownership and inheritance, limited
91
http://www.johnhoward.ca/document/litcou/english/page05.htm#Definition (accessed 13 February 2014).
92
As above.
93
The 7th CEDAW Periodic Report (n 5 above) para 250.
94
As above.
95
Paras 58 & 61 of Declaration.
25
access to education and support services and women’s minimal participation in the decisionmaking process.96
Legal literacy programmes have also been credited with helping women to understand the
link between their rights and other aspects of their lives, and in demonstrating that costeffective initiatives can be undertaken to help women obtain those rights.97
(i) Shelter for Victims
Currently there is no legislation in Kenya that makes provision for the establishment of
shelters for victims of SGBV, and therefore no government funded shelter that victims of
violence can seek temporary refuge in to escape further violence.98 There are few shelters run
by non-governmental organisations but even their capacities are insufficient because of the
high demand and the fact that they are only located in the capital city. 99 The absence of safe
shelters for victims of SGBV complicates situations for victims who then are forced to bear
the pain and indignity for lack of place for refuge or temporary accommodation.
The biggest challenge facing Kenya today thus is how to create an enabling environment for
gender equality and translating commitments into action, together with concrete strategies to
eliminate persistent gender inequality and recognize the roles of both women and men in the
development of the country.
1.5 Opportunities
There are several opportunities that may be exploited in order to combat the scourge of
SGBV. The opportunities are as follows:
96
Para 51 of Declaration.
97
Para 227 of Declaration.
98
There is however a proposal to establish shelters under the Domestic Violence Bill, 2013 which has not been
passed into law and still pending debate by Parliament.
99
National Commission on Gender and Development ‘A Baseline Survey on Gender Based Violence in Kenya’
June 2010 21.
26
Constitution of Kenya 2010
The Constitution of Kenya has provided expressly for the freedom and security of the
person.100 The same article also protects all persons from any form of violence from either
public, or private sources101, and any manner of torture whether physical or psychological102.
The new Constitution places the duty to ensure that the bill of rights is followed on the state
and its organs. This duty is also placed on all public officers. The state and the public officers
are required to address the need of vulnerable groups within the society including women,
older members of the society, persons with disabilities, children, youth, members of
minorities or marginalized communities and members of particular ethnic, religious or
cultural community.103
The Constitution also requires the state to enact and implement legislation to fulfil its
international obligations in respect of human rights and fundamental freedoms.104 The new
Constitution also provides for the right to any person to institute court proceedings claiming
that a right or fundamental freedom has been infringed or denied.
105
The high court has been
given jurisdiction to hear and determine applications for redress of a denial, violation or
infringement, or threat to a right or fundamental freedoms in the Bill of Rights.106
The effect of these provisions is that the state is given more responsibility to combat SGBV,
to prevent it and to prosecute it. The survivors of the violence not only have the right to have
the perpetrators of SGBV taken to court, they also have the right to institute proceedings
against the public officers who are supposed to handle the cases if they do not uphold his/her
rights. Again, one after showing cause can institute private proceedings upon leave of court.
The promulgation of the Constitution therefore puts emphasis on accountability in the
investigation and prosecution of SGBV cases. This will also apply to the provincial
administration, court officials, public health centres, etc. This is a great opportunity that may
100
Article 29 of the Constitution.
101
Article 29 (c) of the Constitution.
102
Article 29 (d) of the Constitution.
103
Article 21(3) of the Constitution.
104
Article 21 (4) of the Constitution.
105
Article 22 (1) of the Constitution.
106
Article 23(1) of the Constitution.
27
result in many persons being aware of their rights relating to SGBV, and general knowledge
of the bill of rights and demands for enforcement in case of violations.
Increased Awareness of SGBV
Kenya as a community is developing intolerance with torture, forced labour and sexual
violence especially of minors due to heightened awareness. As a result, the public is ready to
report child molesters and have them prosecuted in court. The youth are actively involved in
many NGO funded programs and activities aimed at aggressive public education, the
changing of harmful attitudes, the training in positive masculinity and femininity and so on.
The increased awareness is a good starting point in the fight against SGBV as one of the most
important factors that aid SGBV is ignorance and complacency of the community.
The Creation of SGBV Networks
Important to note is the greater co-operation between the non state actors and an increased
tendency to form alliances and networks regionally and nationally. This in turn gives the
organization more lobbying power. This co-operation also allows for consultation between
the bodies in different parts and the sharing of ideas in the fight against SGBV. Co-operation
therefore presents a united front and a bigger capacity to deal with SGBV. As a result, the
monitoring of the implementation of government policy regarding SGBV is likely to be done
in a uniform and coherent manner all over the country if there is effective coordination of
activities of these actors. These connections and networks are also going to aid in the data
collection in different regions and thus ensure the availability of better and up dated data in
the trends in SGBV. This will aid in research and in identifying the benchmarks in the fight
against SGBV.
Amendment of Section 38 of the Sexual Offences Act
Section 38 of the Sexual Offences Act, before amendment, provided that:
Any person who makes false allegations against another person to the effect that the person has
committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to
that for the offence complained of.
The effect of this section was to make it hard for victims of sexual abuse from coming
forward to report cases of SGBV and was therefore criticized for transgressing the United
28
Nations Convention on the Rights of the Child and the African Charter on the Rights and
Welfare of the Child, both of which Kenya has ratified, has since been repealed. 107 The
section was seen as going against the common law principles of fairness and equity and was
further criticized for being too harsh and risked being viewed as one that imposed fear even
to a complainant with a genuine complaint. Taking into account that most Kenyans, including
those who have gone to school, do not understand legal issues, one may be persuaded to
argue that a false allegation may include where an accused has been acquitted, erroneous as it
may be or where a case is dismissed on a technicality. The amendment of this section is
therefore a major achievement in advancement of women’s rights in the fight against SGBV.
Creation of Comprehensive Care Centres
There has been a move towards the creation of comprehensive care centres in the hospitals
which are intended to offer all services needed by victims of violence at one stop. This move
is intended to make the reporting and collection of evidence more effective. It is also meant
to make it easier for the survivors to get all the treatment they need in the form of PEP,
counselling, and follow ups/referrals in one stop, thereby maintaining the confidential nature
of the cases and streamlining the treatment of survivors of sexual violence.
The creation of comprehensive care centres is likely to make it easier for survivors to report
and get treatment for sexual violence. Further, the collection and recording of evidence will
also be easier and more efficient which will lead to an increase in the number of convictions.
With more convictions, may be a deterrent for the would-be offenders and in turn lead to a
reduction in SGBV.
Conclusion
Sexual and gender-based violence does not only occur during times of national strife; it is
rampant even where legal systems and institutions are working. Many different societies and
their legal systems have grappled with the problem of SGBV for eons. However, most
societies have learnt and accepted to uphold and normalise practises and various forms of
abuse against women. A feminist critical lens creates an encompassing form of analysis when
107
Section 33 of the Sexual Offences Act (Amendment) Act, 2012. The actual repeal was done vide The Statute
Law (Miscellaneous Amendments) Act No. 12 of 2012 Special Issue Kenya Gazette Supplement No. 72 (Acts
No. 12) Date of Assent: 6th July, 2012; Date of Commencement: 12th July, 2012.
29
considering the phenomenon of SGBV. In regard to the controversy of sexual violence, the
most glaring factor is gender.
The prevalence of SGBV against women is alarming, especially in a continent that grapples
with major issues of poverty and socio-political downfall. Although the trend recently has
slightly shifted towards battering of men, statistics still show that women are at the worst
receiving end of this faux pas. This has been caused primarily due to biased cultural norms
and gender insensitive legislations which have been enacted. Although international law
standards require that states enact legislations that protect the interests of both men and
women equally, little progress has been realized on this front. Even where such legislation is
in place, it is marred with implementation challenges as discussed earlier. It would be sad to
note that Kenya still does not have a particular legislation dealing with the societal menace of
spousal abuse.
Kenya has since moved at a sluggish pace in its attempts at realizing equal opportunities for
both men and women. This was more because of the constitutional position which allowed
for discrimination against women. That position has since been changed with the advent of a
new constitutional order after a successful referendum in 2010 which saw the realization of a
new Constitution. The Constitution of Kenya 2010 has since sought to level the playing field
for both men and women with propositions for legislations which are gender sensitive. A
good example would be the Domestic Violence Bill 2012 which if enacted would see that
women and children are protected from SGBV, particularly domestic violence.
30
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